Questions & Answers:
Can we request icloud access information for a company-issued phone? The employee does not own the phone or the service and is issued to the employee for company use but the employee can use the phone for personal use. We are in FL.
Contact Aaron Holt at firstname.lastname@example.org
Do you have a sample "employee harassment procedure" that we can use?
I’m not clear on whether you mean a harassment reporting procedure or a harassment investigation procedure. I’ll do my best to answer both, but if you need more specific guidance please contact me directly.
For an investigation procedure, you should focus on the conduct – harassment - you want to prohibit in the workplace rather than the specific investigation steps. Each investigation should be fact-specific so you may need to approach them differently. Having a policy that prohibits certain kinds of conduct will allow you to investigative any alleged violations of your Company’s harassment policy without needing to list out all of the steps that might entail.
For a harassment reporting procedure, you should make sure you are clear that anyone who feels like they are being harassed, discriminated or retaliated against should immediately report this unwelcome conduct. You should include a number of possible people who can receive this kind of report in the event the harasser is someone authorized to receive these complaints. Importantly, everyone who has this authority needs to understand the legal importance of their role. Your policy should state that complaints will be investigated promptly, the company will maintain confidentiality to the extent reasonably possible and no retaliation of any kind will occur for filing a complaint. Remember to communicate the results of your investigation with the necessary parties and any employment action taken should be proportional to the severity of the conduct unless otherwise specified elsewhere in the handbook (example – a progressive discipline policy).
I hope that answers your question in broad strokes. Feel free to contact me directly if you need any clarification or would like me to review your policy.
How would potential employees know that I choose not to hire them because "someone" searched them on social media?
They probably wouldn’t. However, I have seen situations where a disgruntled employee can make life very difficult for a former employer. It isn’t outside the realm of possibility to foresee a situation where a former employee knows of your practice and reports it to the authorities. Besides, the reliability and quality of information obtained through social media isn’t worth the liability in my opinion.
What to do if an employee files a complaint against another employee's social media post that has been taken down?
Your obligation is to ensure that the work environment isn’t hostile to any of the class protected by Title VII. First try your best to see if the alleged post is publicly available because there is no expectation of privacy. If you can’t find the post and the person reporting it didn’t save it, then you should still investigate the conduct to the extent possible. This might mean meeting with the alleged harasser and asking them directly about it based on a complaint you received. Think about it like any other harassment complaint. We don’t always have an audio recording of verbal harassment, but we still investigate and take action when the complaint can be substantiated. The same principals apply to complaints involving social media. An employer’s obligation relates to the work environment. If you can’t substantiate a complaint of harassment, it may still be a good idea to hold a department-wide harassment refresher training to prove you have taken some action in case of future litigation.
Can an employer prohibit an employee to post "inappropriate" pictures from the company party on social media?
Yes, but you have to be specific about what kind of language you use. You can’t prohibit all photos and using vague terms like “inappropriate” would likely be found to violate the NLRA. You would need to specifically state the kind of conduct you are prohibiting – e.g. bullying, harassment, etc. – so you aren’t in any way inhibiting section 7 rights.
Can a policy state who an employee can or can't "friend" on social media?
For regular employees - no. That will likely be seen by the NLRB as prohibiting employees from discussing work conditions with one another, which they have the right to do under Section 7 of the NLRA. Keep in mind the NLRA doesn’t apply to managers and supervisors, so you could limit a manager or supervisor’s ability to “friend” others.